Citation Nr: 0324182
Decision Date: 09/16/03 Archive Date: 09/23/03
DOCKET NO. 98-19 323 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to an evaluation in excess of 10 percent for
traumatic arthritis of the right hand, residual of a shell
fragment wound and the fracture of right fourth metacarpal,
on appeal from the original evaluation.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
J.R. Bryant, Counsel
INTRODUCTION
The veteran served on active duty from September 1967 to
February 1970.
This matter initially came before the Board on appeal from a
rating decision of the Department of Veterans Affairs (VA)
Regional Office (RO) of Columbia South Carolina. This case
was previously before the Board in May 2000.
REMAND
Following a review of the veteran's claims file, the Board
finds that development requested in its May 2000 remand has
not been performed. In Stegall v. West, 11 Vet. App. 268,
271 (1998), the United States Court of Appeals for Veterans
Claims (hereinafter "the Court")-concluded that the Board
had erred when it considered a claim when the RO had not
conformed to the dictates of the earlier Board remand.
The Board remanded the veteran's claim for VA examination so
that any bilateral symptoms, unrelated to the veteran's
service connected right hand injuries, could be
differentiated from symptoms reflective of the shell fragment
wound and fracture of the right fourth metacarpal. In
relevant part, the Board asked the RO to schedule the veteran
for a VA musculoskeletal examination. Specifically, the VA
examiner conducting this evaluation was to provide an opinion
regarding the relationship between all symptoms, including
arthritis, pertaining to the veteran's right hand and the
shell fragment wound with fracture of the fourth metacarpal.
The examiner was to also state specifically whether there was
limitation of motion permitting the veteran to flex the tips
of the fingers of his right hand to within 2 inches (5.1cms.)
of the transverse fold of the palm and whether the veteran
has limitation of motion of less than 1 inch (2.5 cms.) in
either direction with his right hand.
Pursuant to the Board's request, the veteran was afforded
several Compensation and Pension examinations, most recently
in May 2002. The veteran's medical history and complaints
were noted. However, the examiner failed to provide specific
discussion regarding whether or not the arthritis was a
residual of the shell fragment wound and fourth metacarpal
fracture injury and did not distinguish the nonservice
connected symptoms of any bilateral hand disorder from those
of the service connected right hand disability. Hence, the
May 2002 examination report was not wholly responsive to the
Board's Remand.
In view of the apparent confusion surrounding the
manifestations of the veteran's service-connected right hand
injury residuals, the Board believes that additional medical
development is necessary. The Board notes that if it is not
medically possible to distinguish the effects of service-
connected and nonservice-connected conditions, the reasonable
doubt doctrine mandates that all signs and symptoms be
attributed to the veteran's service-connected right hand
disorder. See Mittleider v. West, 11 Vet. App. 181 (1998);
38 U.S.C.A. § 3.102.
The Board recognizes that the case was previously Remanded
and regrets further delay; however, it must be noted that the
Court in a number of cases has determined that where the
record before the Board is inadequate, a Remand is mandatory
rather than permissive. Ascherl v. Brown , 4 Vet. App. 371,
377 (1993); Sanders v. Derwinski, 1 Vet. App. 88 (1990);
Littke v. Derwinski, 1 Vet. App. 90 (1990).
Additionally, while the case is in remand status, the RO
should provide appropriate notice under the Veterans Claims
Assistance Act of 2000 (VCAA). Specifically, the veteran
should be informed as to what evidence the VA would obtain,
and what evidence he would be responsible for obtaining. See
38 U.S.C.A. § 5100 et. seq. (West 2002); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). Final adjudication by the
Board cannot be undertaken without this notice. See
Quartuccio.
Thus, to ensure that VA has met its duty to assist the
veteran in developing all facts pertinent to his claim, the
case is REMANDED to the RO for the following development:
1. The RO should furnish the veteran and
his representative a letter notifying
them of the VCAA and the duties to notify
and assist imposed thereby, specifically
as regards the increased rating claim
currently on appeal. The letter should
include a summary of the evidence
currently of record that is pertinent to
the claim, and specific notice as to the
type of evidence necessary to
substantiate the claim. It should also
be indicated which party would obtain
what evidence. The veteran should be
asked whether he is undergoing continuing
treatment for his right hand, and if so,
attempts to obtain pertinent records
should also be undertaken.
2. Make arrangements for the VA
physician who conducted the
musculoskeletal examination in May 2002
(or another VA physician if this
physician is not available), to review
the record and provide a specific medical
opinion as to the following:
a. Whether there is limitation of
motion permitting the veteran to
flex the tips of the fingers of his
right hand to within 2 inches (5.1
cms.) of the transverse fold of the
palm and whether the veteran has
limitation of motion of less than 1
inch 92.5 cms.) in either direction
with his right hand.
b. If a bilateral hand disorder is
diagnosed, the examiner should
indicate whether it is medically
possible to distinguish the symptoms
and effects attributable to the
service-connected right hand
disability from those attributable
to any other diagnosed condition.
If it is not possible to distinguish
any such symptoms (and resulting
impairment) from those attributable
to any other disorders affecting
either or both hands, the examiner
should clearly so state.
Conversely, the examiner should
expressly indicate whether any
separately diagnosed disability,
including arthritis, is deemed
related to the service-connected
right hand disorder, and, if so, the
nature of the relationship.
The examiner should also render specific
findings as to whether, during the
examination, there is objective evidence
of pain on motion, weakness, excess
fatigability, and/or incoordination
associated with the service-connected
right hand. In addition, the physician
should indicate whether, and to what
extent, the veteran experiences
functional loss due to pain and/or any of
the other symptoms noted above during
flare-ups. To the extent possible, the
examiner should express such functional
loss in terms of additional degrees of
limited motion.
Another examination need not be scheduled
in this case unless the physician
believes this is necessary. The examiner
must set forth the complete rationale
underlying any conclusions drawn or
opinions expressed. The claims folder
must be provided to and reviewed by the
examiner as part of the examination.
3. Upon receipt of the examination
report, the RO should review the report
to ensure that it is adequate for rating
purposes. If not, the RO should return
the examination report to the examining
physician and request that all questions
be answered.
4. The RO should then review the claims
file and ensure that all notification and
development action required by VCCA is
completed. In particular, the RO should
ensure that the new notification
requirements and development procedures
contained in 38 U.S.C. §§ 5102, 5103,
5103A, and 5107 are fully complied with
and satisfied.
5. After completing the requested
action, and any additional notification
and/or development deemed warranted, the
RO should readjudicate the claim by
evaluating all evidence obtained after
the last statement or supplemental
statement of the case was issued. If the
benefit sought on appeal remains denied,
the RO must furnish the veteran and his
representative an appropriate
supplemental statement of the case and
allow them a reasonable period of time to
respond.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
_________________________________________________
Deborah W. Singleton
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).